Neither a gallop nor a Sunday evening stroll

The prosecutions of former President of the Ivory Coast, Laurent Gbagbo, and his Sports Minister, Charles Blé Goudé, came before the Trial Chamber of the International Criminal Court (‘ICC’) on 21 April 2015 for the first time since June and October 2014 respectively.

Both Messieurs Gbagbo and Blé Goudé were the subjects of arrest warrants issued by Pre-Trial Chamber III of the ICC on 23 November 2011 (Gbagbo) and 21 December 2011(Blé Goudé). The warrant issued in relation to Laurent Gbagbo made reference to four counts of crimes against humanity based on his alleged individual responsibility as an indirect co-perpetrator pursuant to Article 26(3)(a) of the Rome Statute, for murder, rape and other forms of sexual violence, persecution and inhumane acts committed during post-election violence from 28 November 2010 by the Ivoirian Defence and Security Forces (‘FDS’) together with pro-Gbagbo youth militia and mercenaries in Abidjan. It is alleged that a plan existed between Gbagbo and his inner political circle the implementation of which was likely to have resulted (and did result) in the pro-Gbagbo forces attacking the civilian population of Abidjan who they believed were supporters of current President, Alassane Ouattarra. The Blé Goudé arrest warrant alleged that he was a member of Gbagbo’s inner circle and therefore a co-perpetrator of the crimes against humanity.

At the full-day status conference held on 21 April, the Trial Chamber, comprising Judge Geoffrey Henderson (Trinidad and Tobago), Judge Olga Carbuccia (Dominican Republic) and Judge Bertram Schmitt (Germany) sought to progress the cases toward trial. The number of Ivoirians packed into the public gallery demonstrated just how keenly such trial is awaited. Gbagbo was held in custody in the Ivory Coast for 8 months before being transferred to ICC custody where he has remained since 30 November 2011. Blé Goudé surrendered to the ICC on 22 March 2014 and has remained in its custody ever since.

Despite forewarning of the attendance of supporters, Gbagbo was noticeably absent from the courtroom, as he had been on every other occasion when his case had been listed for public hearing. In contrast, Blé Goudé, a man of slight build and cheerful disposition, was in attendance until 1pm. Before withdrawing at that time, Blé Goudé stood to address the bench directly rather than through his vast legal team. He thanked the Chamber and welcomed Judge Schmitt who had not previously formed part of the Trial Chamber in the cases. Confirming that he wished to waive his right to attend the remainder of the status conference, Blé Goudé expressed gratitude for being given the opportunity to leave at 1pm in order to attend certain “appointments.” He declared that in leaving he meant no disrespect to the bench and that he intended to be present to ‘suivre ce processus de ma vie à chaque étape’ [to follow this process of my life at each stage].

Only a relatively short time passed before tempers began to flare with the Gbagbo defence team accusing the Prosecution of hiding evidence by failing to disclose material in the Blé Goudé case to it despite having disclosed the evidence in the Gbagbo case to the Blé Goudé defence team. This was preventing Gbagbo from preparing his defence in light of all of the evidence in the case. The Prosecutor’s response that he and his team had not thought about this did not impress in the public gallery.

Concern was also expressed that the Prosecution was continuing to investigate the case while Messieurs Gbagbo and Blé Goudé remained in custody and the total number of Prosecution witnesses to be called had already risen to 120, three times the average number of witnesses in any previous ICC Prosecution.

Turning, at the end of the day, to the listing of the trial, Presiding Judge Henderson prefaced his questions to the parties by indicating that while he would not insist on a gallop, he would not wish the trial to be conducted at the pace of a Sunday evening stroll.

As for the start of the trial, both Prosecution and Defence agreed that it should not commence in October, lest it coincide with Presidential elections in Ivory Coast, the first elections since the violence the subject of the Gbagbo and Blé Goudé prosecutions had occurred. The Prosecution did not wish to be seen as attempting, through the trial, to influence the outcome of those elections, especially in light of talk that Gbagbo may be a candidate from his Dutch prison cell. The UN had predicted a significant likelihood of further violence this October and a number of Prosecution witnesses were members of the Defence and Security Forces whose peacekeeping services would be required during and immediately after the elections.

The Prosecution suggested a listing in mid-November 2015, while the Defence, in light of delays in disclosure, preferred April 2016. The victims’ representative advocated in favour of opening statements being listed for October 2015 with the trial commencing in January 2016.